Many questions in Facebook case

Friday

Feb 8, 2013 at 12:01 AM

A Roseville man recently charged with making terrorist/criminal threats to a Manteca police officer on a Facebook protest wall is causing quite a stir that raises questions about speech boundaries in social media.

Jennie Rodriguez-Moore

A Roseville man recently charged with making terrorist/criminal threats to a Manteca police officer on a Facebook protest wall is causing quite a stir that raises questions about speech boundaries in social media.

Dominic Aguilar posted "50 rounds to your dome Moody" on a page memorializing Ernesto Duenez Jr., who was fatally shot by Manteca police officer John Moody during a stakeout in 2011.

Is Aguilar's comment protected by the First Amendment? Was it just hyperbole to evoke strong feelings? Or did his statement pose a credible danger to the officer, therefore nullifying his freedom of speech?

Such are the questions being raised on the eve of his further arraignment, scheduled for today in the Manteca branch of San Joaquin County Superior Court. He has yet to enter a plea.

Unsavory speech is much more in the open with the proliferation of social media, but when does it cross the line to a criminal threat?

"It is true you don't have a First Amendment right to make a true threat," said Leslie Gielow Jacobs, a professor at the University of the Pacific McGeorge School of Law in Sacramento.

But for it to be a true threat, she said, the messenger has to say something that causes a reasonable person to feel they have a reasonable fear of bodily harm.

"You have to take the context of it into account," she said.

Sarah Palin, for example, put up signs with gun metaphors that suggested Rep. Gabrielle Giffords needed to be taken out of office, Jacobs said. She wasn't actually suggesting Giffords be shot, Jacobs said.

"That would be the question in (Aguilar's) case," she said. "It is a tough one. ... It sounds like it could be hyperbole."

Courts look at a number of factors to determine the reliability of a threat: Was the threat aimed directly at the person? Are there other similar statements? Is there reason to believe the speaker could engage in violence? Was the recipient of the message actually in fear?

Manteca Police Chief Nick Obligacion has said Aguilar's statement "rose to the level of criminal violation." He declined to comment further on the investigation.

Prosecutors filed charges in January and in court argued for bail to be set at $150,000, because Aguilar has a criminal background, including a weapons conviction. Aguilar posted bail with the financial support of family and community members.

Aguilar's background might account for police determining the level of threat, said Bay Area freedom of speech advocate Peter Scheer, but it shouldn't play into an analysis of First Amendment rights.

"Sometimes the police do not have enough to charge somebody," said Scheer, executive director of the First Amendment Coalition in San Rafael. "But in detaining them for a brief time they may be able to disrupt what they had good reason to believe would have been a very serious crime.

"If they genuinely thought he was about to kill this guy, then I'm a bit surprised they would have agreed to his release on bail."

Aguilar's family has said his criminal violations are more than 15 years old, and the defendant is now a self-employed and home-owning citizen who doesn't own a gun.

Aguilar's attorney, Tai Bogan, believes the comment should be protected regardless of the defendant's past.

"People say things in protest when they're inflamed because of some political or some action taken by government and they scream things in protest," Bogan said.

Aguilar was reacting to the shooting of Lathrop resident Ernesto Duenez Jr., who police say was suspected of domestic violence. Video footage of the incident from the police car's dashboard camera, released by the Duenez family attorney, has incited public criticism of the police department and the officers involved.

The District Attorney's Office found the officers were justified and says Duenez was armed with a knife, but the Duenez family has said he was unarmed.

Bogan said Aguilar's angry comment wasn't intended to reach Moody.

"It was a Facebook post on a private page that is really open to the public," Bogan said. "Can the government quash protest on the Internet? I say they can't."

Bogan referenced a Ninth Circuit Court of Appeals ruling that exonerated California resident Walter Bagdasarian of criminal charges in 2011. Bagdasarian wrote on a Yahoo finance website that President Barack Obama "will have 50 cal in the head soon," and he called on someone to shoot the president.

It is plausible Aguilar's comments, too, could be interpreted as an expression of extreme anger, Scheer said.

"These are very difficult calls to make," he said.

Against the argument for criminal charges, Scheer believes, is the fact Aguilar commented publicly, probably knowing that he could be readily identified as the author.

"It seems to me he wasn't genuinely threatening to take eminent action against this officer, but was expressing his anger and perhaps even his wish that somebody else might do something against this police officer," Scheer said. "But that is not enough under the First Amendment."